Bad design aside, we’ve all probably hit “reply all” when “reply” was the better call.
But what happens when “all” includes the represented, opposing party? This came up at the APRL conference last week.
Lawyers sometimes copy their own clients on emails to opposing counsel. I recommend against this for several reasons, not the least of which is clients are humans and humans do weird things and weird things are worse when an exhibit sticker gets attached to them. If I do need a client to see what I’ve written to opposing counsel I’ll generally forward it separately, so they can respond separately and say whatever they have to say to me and me only.
Here’s a true story—I had been representing a client in a law license reinstatement. The Office of Lawyer Regulation had retained outside counsel to handle this, and he emailed me about some logistical issue. He copied internal OLR litigation counsel. I replied-all. The retained lawyer then emailed me separately to tell me I had violated SCR 20:4.2 by communicating with his client (the internal counsel) without his permission—but, don’t worry, he wasn’t going to rat me out, he giggled. (Ever get an email where you could hear the giggle despite it just being text? This email giggled.)
But was it really a violation? Wisconsin has not yet weighed in on the issue, and last week I learned, to my shock, that until recently most jurisdictions that had issued opinions had concluded that replying-all without explicit permission did constitute a violation of Model Rule 4.2 or the state equivalents. (Kentucky and Alaska are recent examples.) These jurisdictions rejected the idea that by copying the clients on the emails, the lawyer implied their consent to communication.
The problems with these opinions are manifest and, from my perspective, obvious—if you’re having a conversation with a lawyer and their client in person, nobody asks if it’s OK to continue the conversation; the lawyer whose client is in the room assumes responsibility for the interaction and will instruct the client to leave if needed. Why should email be different?
But, also, this scenario can set up what others have termed a “booby trap” for the unsuspecting recipient. I could certainly envision an unscrupulous opposing counsel setting this up deliberately, too.
Finally, earlier this year, New Jersey issued an opinion firmly on the side of common sense, and put the onus on the sending lawyer to decide whether to include their client in the communication and not on the receiving lawyer to guess as to whether the conversation was intended to include the client.
Still, this is unsettled in many jurisdictions, so caution remains key.